Infringement occurs when a company uses a mark that is similar enough to a protected trademark that the new mark is likely to cause confusion among the consuming public. Trademark infringement suits attempt to strip a company of its right to use its logo, tagline, brand name or other identifier, and even press for monetary damages. Courts consider a number of factors, including:

• The strength of the mark — Does the original mark have clear standing in the marketplace?
• The similarity of the marks — Do the marks appear similar?
• Evidence of actual confusion — Have consumers bought the second product believing it to be the first?
• Your intent — Did you intend to deceive the public and unfairly take market share from your competitor?

The two major defenses to trademark infringement are fair use and parody. The fair use defense is viable when one company uses another’s descriptive trademark in good faith simply to describe a quality of its product and no consumer confusion results. Parody allows artistic and editorial use of a trademark if the use is not tied directly to commerce.

A defendant can also argue that the plaintiff lost the right to a trademark due to abandonment, improper licensing or assignment, or because the mark has become generic.

If your company is found to have committed trademark infringement, you face crushing liability that could cost you any profits you’ve made and force you to indemnify your competitor’s losses. If the court finds you acted in bad faith, such as deliberately attempting to deceive the public, it can order treble damages.